Whether the Supreme Court’s judgment of remand falls under “final and conclusive final judgment” subject to review (negative)

[1] Articles 436 and 451 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No.1995Sang, 130 others, Counsel for plaintiff-appellant)

Benmanle

Private School Teachers Pension Management Corporation

Supreme Court Decision 2001Da64868 Delivered on September 13, 2004

The litigation for retrial shall be dismissed. The litigation costs for retrial shall be borne by the plaintiff (the plaintiff).

The plaintiff (hereinafter "the plaintiff") reversed the part against the defendant of the judgment of the court below, and remanded this part of the case to the Panel Division of the Seoul Central District Court. The plaintiff's appeal is dismissed. The plaintiff's appeal is dismissed. The judgment for retrial of this case contains grounds for retrial under Article 451 (1) 1, 9, and 10 of the Civil Procedure Act.

However, the judgment of remanded by the Supreme Court cannot be deemed to constitute a "final judgment" which is the subject of a retrial (see Supreme Court en banc Decision 93Da27, 34, Feb. 14, 1995). The part of the lawsuit subject to a retrial among the judgment subject to a retrial is unlawful. Meanwhile, the plaintiff does not state specific grounds for retrial by asserting that there are grounds for retrial under each subparagraph of the above provision. In addition, it cannot be deemed that there are such grounds for retrial on the record, and therefore, this cannot be a legitimate ground for retrial. Accordingly, the lawsuit of this case is entirely unlawful.

Therefore, the lawsuit of this case is dismissed, and the costs of the retrial are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)